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MARTHA H. McILWAIN v. CECIL McILWAIN

NOVEMBER 23, 1983

MARTHA H. McILWAIN
v.
CECIL McILWAIN



BEFORE BROOM, ROY NOBLE LEE and HAWKINS

ROY NOBLE LEE, JUSTICE, FOR THE COURT:

Cecil McIlwain, Jr. filed suit for divorce against Martha H. McIlwain, his wife, in the Chancery Court of Wayne County, Honorable M. Wyatt Collins, special chancellor, presiding, on the grounds of habitual cruel and inhuman treatment and irreconcilable differences. Mrs. McIlwain denied the averments of the bill of complaint and filed a cross-bill seeking separate maintenance, alimony, support for two teen-age children, and attorney's fees. Her cross-bill was amended to ask for divorce on the ground of habitual cruel and inhuman treatment, and, after a full hearing, the special chancellor granted Mrs. McIlwain a divorce, custody of, and support for, the children, including a housing allowance, and certain items of personal property. Mrs. McIlwain has appealed that part of the decree fixing child support and denying alimony.

The assignments of error are four in number, but they all go to the principal questions of inadequacy of support, housing and alimony.

 The parties were married March 22, 1964, and two children were born: Neil Allen, age 15, and Steven Kent, age 13. The parties separated June 21, 1982, and the divorce decree was entered November 5, 1982.

 The pertinent parts of the lower court decree relating to the questions presented appear as Appendix I.

 This case follows the usual pattern involving support and alimony. The appellant contends that the amounts of child support awarded and the inadequacy of alimony are manifestly erroneous and that she and the children are unable to survive with those allowances.

 The appellee argues that, because of his financial responsibilities, he is unable to pay any larger amounts than those awarded; that he would lose the property he owns, if required to pay more; and that he could not exist in the event of an increase.

 The proof indicates that appellee is vice president and a member of the Board of Directors, Bank of Shubuta. He had income in the year previous to the divorce of approximately $40,000, although it is recognized that the amount fluctuates. *fn1

 Appellee inherited property from his parents, consisting of a home and 25 acres of land, the value of which is not disclosed by the record. However, in 1979 and 1980, he borrowed $65,000 from the Bank of Shubuta (his employer) and used same to improve and refurbish the home. Both parties' schedules of expenses are set forth in Appendix II.

 Appellant is repaying the $65,000 loan to the Shubuta bank at the rate of $1,275.00 per month or $14,000 per year. The promissory note is from year-to-year and the loan would be repaid over a period of approximately five (5) years. No effort was made to obtain a long-term loan in order to finance the indebtedness. If repayments were approved or permitted in such amounts, the appellant could divest himself of practically all monthly and yearly income and forfeit his responsibilities to a dependent wife and children.

 The special chancellor apparently was of the opinion that it would be inequitable to deprive appellee of his inheritance. Howsoever a husband and father acquires a home and property is of no consequence in a proceeding such as this. The paramount question is the children's best interest. Appellee was temporarily living in a furnished mobile home at a rental cost of $225 per month. Appellant testified that a home suitable for her and the two children in Waynesboro would rent for $300 to $350 per month.

 We are of the opinion that the special chancellor should have ordered that appellant and the children have the use of the home, certainly until the children attained their majority or until the appellant may marry again, whichever occurs first. The special chancellor abused his discretion in not doing so. Clark v. Clark, 293 So.2d 447 (Miss. 1974); Judge v. Judge, 370 So.2d 834 (Fla. 1979). We recognize that use of the home by appellant is in the nature of continuing monthly alimony. Rhodes v. Rhodes, 336 So.2d 1315 (Miss. 1976); Savell v. Savell, 290 So.2d 621 (Miss. 1974).

 In addition, the appellee will be required to refinance the home indebtedness with a long-term loan, if he cannot make the present monthly payments and provide adequate support indicated herein. Child support may or may not be increased and reasonable alimony will be allowed on a retrial, after considering all facts and circumstances then existing.

 The decree of the lower court is affirmed as to the divorce, custody of children, medical, drug, dental and hospital expenses for the children, allocation of personal property and attorney's fees. It is reversed and rendered as to use and possession of the home, increase of child support, and an allowance of alimony, and is ...


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